Table of contents: Clean Water Act Permits and the Supreme Court
By: Jennifer Novak & Nichole Fandino
Recently, the United States Supreme Court heard arguments in a major case regarding Clean Water Act permits. Specifically, this dispute involves a coastal California municipality and the Environmental Protection Agency (EPA). Consequently, the final ruling could significantly impact local and national environmental policies.
At issue are storm water regulations required through the National Pollutant Discharge Elimination System (NPDES). Furthermore, these rules apply to entities discharging pollutants into Waters of the United States.
Clean Water Act Permits and Managing Combined Sewer Systems
Briefly, the municipality operates a combined sewer system (CSO). This system collects both sewage and stormwater. Depending upon the storm event, the system can overflow. As a result, it sends pollutants directly into the ocean.
To combat this effect, the city built a large-scale, ocean-adjacent treatment facility. In 2019, the facility received a new NPDES permit. Importantly, this permit included vague “narrative” limits. Essentially, it issued a general prohibition on water quality standards violations.
Subsequently, the city unsuccessfully challenged the permit. They filed an administrative appeal to the EPA and the regional Court of Appeals. Now, the Supreme Court faces a critical question regarding Clean Water Act permits. Must these permits identify specific numeric limits for dischargers to meet? Or, can they simply demand permittees meet general receiving water quality standards?
Related: What’s It Mean To Be A Superfund Site?
The Tension Between Agencies and Municipalities
Interestingly, both the municipality and the EPA actively seek to protect water quality. On one hand, the EPA focuses on maintaining its strict enforcement abilities. Likewise, it wants to preserve state regulatory authority over water quality.
Conversely, the municipality operates as a downstream entity. Therefore, it has a strong interest in upholding stringent regulations. This prevents increased pollution from upstream dischargers. Otherwise, upstream pollution could adversely affect the city’s shoreline parks and beaches. However, the current permit holds the city fully responsible for the overall ocean water quality. This goes far beyond what the city actually discharges from its treatment plant.
Far-Reaching Implications for Environmental Regulation
Undoubtedly, bringing this dispute to the Supreme Court carries considerable risks. Recently, judicial trends in landmark Supreme Court decisions point toward a specific movement. Specifically, they aim to weaken environmental protections under the pretext of simplifying regulations. Consequently, experts worry that cases like this could further undermine the Clean Water Act. Furthermore, this could set a damaging precedent for environmental regulation nationwide.
Ultimately, resolving these disputes surrounding Clean Water Act permits has far-reaching implications. It heavily impacts corporate businesses, real estate developers, and everyday property owners. On one hand, non-numeric standards provide flexibility for permit holders. Here, regulators measure compliance by efforts rather than strict results. Unfortunately, this often conflicts with the desire to protect national waters.
On the other hand, simply asking permit holders to “not violate” rules makes compliance extremely difficult. Moreover, it often results in major operational inefficiencies. Yet, beyond these practical questions, the real impact goes much deeper. Ultimately, these challenges test the current Supreme Court’s appetite for rewriting environmental laws. Furthermore, they establish strict new boundaries on federal agency authority. Therefore, stay tuned for further updates.
Related: What Is The Role Of Science in Environmental Law?
About Us
The Law Office of Jennifer F. Novak Environmental Law represents property owners and businesses in environmental litigation and regulatory matters. Our practice focuses on soil and groundwater remediation, Clean Water Act citizen suits, compliance with Water Board orders (including under Sections 13304 and 13267), and other environmental legal challenges. We provide strategic counsel to clients navigating complex environmental regulations while ensuring fairness in enforcement and compliance.
For dedicated legal representation in environmental litigation and compliance, contact The Law Office of Jennifer F. Novak Environmental Law.
